IPBiz

Intellectual property news affecting business and everyday life

Tuesday, October 30, 2012

"Namesake" episode of NCIS on Oct. 30 does patents and Montford Point Marines

The episode was a tribute to the Montford Point Marines, black Americans who served during World War II. Billie Dee Williams plays Leroy Jethro Moore, for whom Gibbs received his "Leroy Jethro". A visit to a pawnshop turns up two items, a gun and a Congressional Medal of Honor (Moore's), which define the two main story themes.

Of the gun, a person was shot in a Ferrari, owned by one Vijay Chaya. Of relevance to patent attorneys and their clients, Chaya, a software mogul, was being hunted down by a disgruntled intern ("Alec Dell"), whose software idea [for a file sharing app] was patented by Chaya's company. When Gibbs explained the Dell problem to Chaya, Chaya pointed to an assignment agreement signed by Dell, and maintained he had done nothing wrong. Gibbs, with Ducky, asserted that Vijay had deceived Dell and had stolen invaluable IP from Dell. "He wants you dead."

Vijay agreed to a plan to place $1 million in Dell's bank account, leading quickly to Dell's apprehension, with help from a remote identification of Dell's motorcycle in Greenham [?], KY.

Apart from this "theft" of Dell's IP, Chaya came off as a sleeze, making a clumsy pass at Abby.

LBE noted one comment at tvline: Yea, Billie Dee Williams could play a WWII vet- if he was 8 when the war ended. That’s a mighty young vet.

Sunday, October 28, 2012

"60 Minutes" on October 28, 2012

In Randolph County, NC there's no escaping political ads. Scott Pelley reports on Asheboro, NC and Purgatory Mountain. Mill in Ramseur, NC shut down. Amelia Hill will close her diner this coming Thursday. "There's no surviving." The bank was turned into a museum that is open two days a month. Textile plant built in 1949. Between 2000 and now, 5 million manufacturing jobs lost in US. Kernersville, NC tobacco barns turned into place for entrepreneurs. Miss Jenny's Pickles. 95% of the world lives outside the US. You have to think outside of the jar. No means go. Bobby Barry got a job at Malt-o-Meal. HyoSung USA bought a wire plant and may be exporting jobs to Viet Nam. Matt Barry is at Randolph Community College and many of his classmates are in their 30s and 40s. Around Purgatory Mountains jobs lost are being re-invented. If there's going to be a better tomorrow, they are going to have to build it themselves.

Seller of fraudulent documents. Bob Simon reports on Barry Landau, a con man who created a fake career as a “presidential historian” so he could get access to the archives from which he stole thousands of items

CBS Sunday Morning on October 28, 2012

Cover Story -- Superstition: In his playing days, former major league pitcher Casey Daigle had a few routines that others would find strange: going to the bathroom at the same time during each game, whether or not he actually had to, eating the same meal at an Olive Garden before pitching in a game, no matter the distance; Daigle said he would go into "panic mode" about the possible negative fallout. He admits now this seemed ridiculous, but not superstitious behavior. Experts might take issue -- Psychologist Stuart Vyse states superstition is "a belief or action inconsistent with science . . . aimed at bringing about good luck or avoiding bad luck." Vyse points out that a majority of people are susceptible to magical thinking - nothing to be proud of. Only 40% of Americans believe in evolution, yet half of us believe in some kind of superstition -- not a good thing. Casey Daigle and his equally routine-driven wife, Olympic gold medalist Jennie Finch; Blood Manor Haunted House in New York City, black cats/broken mirrors, superstition celebrated annually at Halloween. See bloodmanor.com; stuartvyse.com.

On Halloween, cryptozoology, reported by Serena Altschul.

Q&A with Christopher Walken with Tracy Smith: Walken has scared us half to death and killed us with laughter. Now in his latest film, "Seven Psychopaths," Walkens' Hans is a non-violent (crazy) guy who kidnaps dogs for reward money, co-starring Colin Farrell, Woody Harrelson, Tom Waits, Gabourey Sidibe, Sam Rockwell, and more. Walken declined to speak about the night of Natalie Wood's death (he was on the boat the night she died), stating he stopped talking about it 30 years ago.

Talking Points, with former president Bill Clinton, interviewed by Rita Braver; the annual Clinton Global Initiative, his world charity that touches 400 million lives around the world. Not being president has made it easier for him to worry about trendlines over headlines'. He's placed himself in this year's political fray because he thinks that if America makes the wrong decision, it could lead our country astray. Knows that his Republican allies are challenged by CGI in his support of Obama. L'Oreal in Little Rock, where CGI is helping to reduce carbon emissions. On Hillary, his undying devotion and support; on his mortality, he is lives each day as if it's his last, the older he becomes and is determined to live to be a grandfather.

An Alred E. Neuman, silk-screen, segment opened by Charles Osgood, introducing "Mad Magazine's: "What, Me Worry?" with Mo Rocca; John Ficarra, of Mad Magazine, which turns 60 this year; the "Usual Gang of Idiots" -- class clowns and professional comedians they inspired; make fun of everything: 'Jaws', vampire movies, Nixon and Agnew (dressed as con-men from 'Sting'), etc.; Mad readers knew to question authority -- smokers, Dave, Cheney, Washington cross-dressing the Delaware, etc. Spy Magazine, the Onion, Simpsons, etc., all have roots in Mad Magazine. Being parodied in Mad can be a badge on honor (shows Trump as a Chia Pet) Some haven't taken it so well -- Irving Berlin and litigation. Weird Al Yankovic says Mad prepared him for his career more than his college degree. Spoofing continues, from the generation that never changes.

Next, Left (Nancy Giles) meets Right (Ben Stein) commentary: With election day just nine days off, what leaves a person to choose their political stance? Bunker and Limbaugh on liberalism -- Giles says they make it seem like a curse-word, but she's proud of it. Grew up in Queens, NY, in her estimation, the most liberal town in America, to college in Ohio: there are different kinds of people; she's a liberal because she likes the mix of governments rather than aristocracies; we participate with our votes, government for..and that's liberal (Lincoln) and the Constitution; abolishing slavery, women's right to choose, programs to help level the playing fields: Head Start, unemployment, etc. Fairness, that's liberal. Giving is a good thing -- generous is good. Liberal, Kansas, so-named by a man lending his well-rights. Stein is an unabashed conservative: raising taxes is good; a responsible American who is afraid of 'big-government'. [Recall in other recent interviews, Stein has endorsed Simpson-Bowles deficit-reduction plan, urged some tax hikes and noted the dearth of evidence that they would retard economic growth.] 20th century most murderous in all of time, enslavement of individuals; Stein believes ordinary human right are tantamount; wants to see an America that is totally safe; avowed conservative because he believes the great size of America will keep and protect the needy and is still small enough to preserve the rights of the weakest among us.

A look at the week ahead: Tuesday, Hurricane Sandy will make land-fall along the Atlantic coast; Wednesday is Halloween, Thursday is the Country Music Awards, Friday is [?] and Saturday is the Million Muppet March; in Miami, meteorologist David Bernard gives weather update -- hurricane-force gusts spreading over the northeast this week, Frankenstorm, hurricane/blizzard with full moon.

Preview of Bob Schieffer; guests are Mayor Rahm Emanuel and Senator John McCain.

Next week: juggling while jogging.

Moment of Nature, by Spiriva HandiHaler: Goblin Valley State Park in Utah, where mysterious goblin shapes called hoodoos haunt the landscape; see http://www.americansouthwest.net/utah/goblin_valley/state_park.html.

Friday, October 26, 2012

En banc rehearing denied in Baxter case

Judge Newman, dissenting from the denial of rehearing in Baxter, is troubled that the court system could find a patent valid, but then affirm a re-examination ruling of invalidity, all on the SAME evidence.

These departures from the constitutional requirements of judicial authority require attention, for the holding that reexamination can override the finality of final judicial is having enlarged impact.4 The PTO grants most requests for reexamination, see USPTO Reexamination Filing Data – June 30, 2012, http://www.uspto.gov/patents/stats/index.jsp (granting 92% of ex parte and 94% of inter partes reexami- nation requests), and a patent in reexamination carries a “stigma of uncertainty regarding entitlement to the patent,” Bruning v. Hirose, 161 F.3d 681, 685 (Fed. Cir. 1998).

It is time for the court to resolve the concerns and conflicts it has created.

Thursday, October 25, 2012

Benefits must be shown with factual evidence

Note also that, to establish a prima facie case of obviousness, the Examiner need not combine the prior art teachings in view of benefits contemplated by the applicant. See In re Beattie, 974 F.2d 1309, 1312 (Fed. Cir. 1992). And, though the Applicants may rebut the prima facie case by showing such benefits were unexpectedly good, that showing must be made with factual evidence. See In re Soni, 54 F.3d 746, 750 (Fed. Cir. 1995). Appellants’ conclusory statements about reduced granularity are insufficient. Id.

Conclusory statements do not suffice

Significantly, the Appellants have failed to direct us to any evidence establishing that these results would have been “unexpected.” See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir, 1997) (attorney argument is not the kind of factual evidence that is required to rebut a prima facie case of obviousness); see also In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984) (“Mere argument or conclusory statements in the specification does not suffice.”). To the extent that the decrease in creep exhibited by formulations E1 and A2 may have been an improvement over other prior art compositions, a mere improvement is not sufficient to establish that the results would have been “unexpected.” See In re Freeman, 474 F.2d 1318, 1324 (CCPA 1973) (in order for a showing of “unexpected results” to be probative evidence of non-obviousness, the applicant must establish that the difference between the results obtained through the claimed invention and those of the prior art would not have been expected by one skilled in the art at the time of invention).

Of closest prior art:

Finally, the Appellants have failed to explain, in any detail, why the comparative compositions disclosed in the Appellants’ Specification constitute the closest prior art. See In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991) (“results must be shown to be unexpected compared with the closest prior art”).

Wednesday, October 24, 2012

Cecil Quillen again

Given these observations, it is the Commenter's view that efforts at change should be directed at resolving the entirety of the Federal Circuit problem by restoring appellate jurisdiction in patent infringement cases to the regular circuit courts of appeals. If the cause is to be lost in any event, it is better to lose fighting for the complete solution.

Icon Health loses at CAFC

-->Wilson Sporting Goods Co. v. David Geoffrey & Assocs., 904 F.2d 677, 684 (Fed. Cir. 1990) (“[A] patentee should not be able to obtain, under the doctrine of equivalents, coverage which he could not lawfully have obtained from the PTO by literal claims.”), overruled in part on other grounds by Cardinal Chem. Co. v. Morton Intern., Inc., 508 U.S. 83 (1993).

In circumstances such as these, where there is evidence that prior art would be included in an asserted range of equivalents, the patentee must show that its proposed equivalent does not encompass the prior art. Streamfeeder, LLC v. Sure-Feed Sys., Inc., 175 F.3d 974, 983 (Fed. Cir. 1999). Here, Octane presented evidence that ICON’s asserted range of equivalents would encompass the Maresh patent, a conclusion with which the district court agreed. Summary Judgment Op., 2011 WL 2457914, at *12. ICON, in response, argued that the Maresh patent does not anticipate the ’710 patent because it is missing the “means for selectively varying” limita- tion. However, even a cursory read of the Maresh patent shows a discussion of altering the elliptical path by changing the length of the linkage system parts.

On November 1, 2012, American University will host the First Annual Peter Jaszi Distinguished Lecture on Intellectual Property which, is named in recognition of the extraordinary ongoing contributions of Professor Peter Jaszi to the study of intellectual property at American University Washington College of Law and in the world at large. The event will feature presentations by Mr. Kal Raustiala and Mr. Christopher Sprigman titled “The Knockoff Economy: How Imitation Sparks Innovation” in which they will argue that creativity can not only survive in the face of copying, but can thrive.

Benghazi and the use of social media

The first email, timed at 4:05 p.m. Washington time - or 10:05 p.m. Benghazi time, 20-30 minutes after the attack on the U.S. diplomatic mission allegedly began - carried the subject line "U.S. Diplomatic Mission in Benghazi Under Attack" and the notation "SBU", meaning "Sensitive But Unclassified."

The text said the State Department's regional security office had reported that the diplomatic mission in Benghazi was "under attack. Embassy in Tripoli reports approximately 20 armed people fired shots; explosions have been heard as well."
The message continued: "Ambassador Stevens, who is currently in Benghazi, and four ... personnel are in the compound safe haven. The 17th of February militia is providing security support."

A second email, headed "Update 1: U.S. Diplomatic Mission in Benghazi" and timed 4:54 p.m. Washington time, said that the Embassy in Tripoli had reported that "the firing at the U.S. Diplomatic Mission in Benghazi had stopped and the compound had been cleared." It said a "response team" was at the site attempting to locate missing personnel.

A third email, also marked SBU and sent at 6:07 p.m. Washington time, carried the subject line: "Update 2: Ansar al-Sharia Claims Responsibility for Benghazi Attack."
The message reported: "Embassy Tripoli reports the group claimed responsibility on Facebook and Twitter and has called for an attack on Embassy Tripoli."

Tuesday, October 23, 2012

CAFC in FLO Healthcare: we correct the Board’s analysis, but affirm the Board’s conclusion. The issue of "broadest reasonable interpretation."

In a case, FLO Healthcare, involving an appeal from the results of Reexamination No. 95/000,251, the CAFC affirmed the result obtained by the BPAI.

Footnote number 1 related to the AIA: Pursuant to the America Invents Act (“AIA”)
amendments to Title 35 (see Public Law 112-29), the
Board officially changed its name from the Board of
Patent Appeals and Interferences to the Patent Trial and
Appeal Board on September 16, 2012.

Of the technology, the patent under reexamination, United States Patent No. 6,721,178, describes a mobile computer work- station intended for medical care environments. The PTO granted Rioux’s request for inter partes re- examination, finding a substantial new question of pat- entability with respect to all forty-four claims of the ’178 patent. The examiner initially issued thirteen different obviousness rejections, nine of which relied on United States Patent No. 5,287,815 to Gross (“Gross”) as a pri- mary reference.

Footnote 4 also related to the AIA: “Unlike an ex parte reexamination pro- ceeding, an inter partes reexamination proceeding allows the third-party requester to participate in the reexamina- tion by submitting written comments addressing issues raised in the patent owner’s response to an office action, appealing a decision in favor of patentability, and partici- pating as a party to an appeal taken by the patent owner.” Cooper Techs. Co. v. Dudas, 536 F.3d 1330, 1332 (Fed. Cir. 2008). Effective September 16, 2012, the AIA amendments replaced inter partes reexaminations with a new inter partes review process. 35 U.S.C. §§ 311-319.

Of the legal issue:

Our cases have established two guidelines for deter- mining whether the special rules of claim construction set forth in § 112, ¶ 6 apply to a given claim limitation. The guidelines are straightforward: use of the word “means” creates a rebuttable presumption that the drafter in- tended to invoke § 112, ¶ 6, while failure to use the word “means” creates a rebuttable presumption that the drafter did not intend the claims to be governed by § 112, ¶ 6. See Personalized Media Commc’ns LLC v. Int’l Trade Comm’n, 161 F.3d 696, 703-04 (Fed. Cir. 1998). In rebut- ting the presumption, when a claim recites a function “but then goes on to elaborate sufficient structure, mate- rial, or acts within the claim itself to perform entirely the recited function, the claim is not in means-plus-function format even if the claim uses the term means.” Id. at 704 (quoting Sage Prods. v. Devon Indus., Inc., 126 F.3d 1420, 1427-28 (Fed. Cir. 1997) (internal quotes omitted)). Conversely, “a limitation lacking the term ‘means’ may overcome the presumption against means-plus-function treatment if it is shown that ‘the claim term fails to recite sufficiently definite structure or else recites function without reciting sufficient structure for performing that function.’” Mass. Inst. of Tech. v. Abacus Software, 462 F.3d 1344, 1353 (Fed. Cir. 2006) (quoting CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1369 (Fed. Cir. 2002)).
Since the term “means” is not present in the claims on appeal, it is the latter form of rebuttal that is at issue here. The Board determined that the presumption was sufficiently rebutted because “the disputed claim limita- tion [height adjustment mechanism] does not recite sufficient structure for performing the recited function.” Board Opinion, 2011 WL 289281, at *9. According to the Board, “the terms ‘height adjustment’ merely qualify the recited ‘mechanism,’ which has not been shown to inher- ently impart structure, with a function or purpose (‘height adjustment’).” Id. Thus, the Board “conclude[d] that the disputed claim limitation must be interpreted in accor- dance with 35 U.S.C. § 112, ¶ 6.” Id.
We are not convinced that the presumption against a means-plus-function construction is that easily rebutted. “Our cases make clear . . . that the presumption flowing from the absence of the term ‘means’ is a strong one that is not readily overcome.” Lighting World, Inc. v. Birch- wood Lighting, Inc., 382 F.3d 1354, 1358 (Fed. Cir. 2004). When the claim drafter has not signaled his intent to invoke §112, ¶6 by using the term “means,” we are unwilling to apply that provision without a showing that the limitation essentially is devoid of anything that can be construed as structure. See Masco Corp. v. United States, 303 F.3d 1316, 1327 (Fed. Cir. 2002). Thus, we will not apply § 112, ¶ 6 if the limitation contains a term that “is used in common parlance or by persons of skill in the pertinent art to designate structure.” Lighting World, 382 F.3d at 1359.
It is the case that the generic term “mechanism” standing alone may connote no more structure than the term “means.” Mass. Inst. of Tech., 462 F.3d at 1354. However, we have also recognized that surrounding claim language further defining the mechanism can add suffi- cient structure to avoid a § 112 ¶ 6 construction. Id. In Greenberg v. Ethicon Endo-Surgery, Inc., 91 F.3d 1580 (Fed. Cir. 1996), for example, we held that § 112, ¶ 6 did not apply to the claim limitation “detent mechanism” because dictionary definitions established that “the noun ‘detent’ denotes a type of device with a generally under- stood meaning in the mechanical arts . . . .” Id. at 1583.

Bottom line: We find that the term “height adjustment mechanism,” as used in the ’178 patent and in common parlance, reasonably imparts sufficient structure so that the presumption against applying § 112, ¶ 6 in this context is not overcome. Accordingly, the Board erred by construing the “height adjustment mechanism” limitation under § 112, ¶ 6.6 We thus disapprove that portion of the Board’s decision.7

The catch: However, although the Board’s decision was predi- cated upon a legally erroneous construction of the “height adjustment mechanism” limitation, we nevertheless agree with the Board’s ultimate conclusion that the claims do not require a length-adjustable vertical beam. Board Opinion, 2011 WL 289281, at *9. The claims themselves do not recite such a limitation. It is true that all of the embodiments discussed in the patent have a length- adjustable vertical beam, but it is not proper to import from the patent’s written description limitations that are not found in the claims themselves. Silicon Graphics, Inc. v. ATI Techs., Inc., 607 F.3d 784, 792 (Fed. Cir. 2010) (“A construing court’s reliance on the specification must not go so far as to import limitations into the claims from examples or embodiments appearing only in a patent’s written description unless the specification makes clear that the patentee intends for the claims and the embodi- ments in the specification to be strictly coextensive.”) (internal quotation marks omitted).

And the result:

Based on our review of the record, we are satisfied that the factual determinations underlying the Board’s decision are supported by substantial evidence, and that the Board came to the correct legal conclusions based on those facts. Flo does not suggest otherwise. Flo’s only argument on appeal is that the prior art fails to teach or suggest a length-adjustable vertical beam. But as we have discussed, the claims on appeal when properly construed do not require a length-adjustable vertical beam. And as Flo acknowledges, the prior art rejections must stand in the absence of such a limitation. Oral Argument at 8:10-8:40, available at http://www.cafc. uscourts.gov/oral-argument-recordings/2011-1476/all. We thus affirm the Board’s decision that the claims are not allowable.

Chenery arose in footnote 7:

This court has long recognized that we may, “where appropriate, affirm the agency on grounds other than those relied upon in rendering its decision, when upholding the agency’s decision does not depend upon making a determination of fact not previously made by the agency.” In re Comiskey, 554 F.3d 967, 974 (Fed. Cir. 2009). We also need not remand for further proceed- ings before the PTO as we did in In re Aoyama, 656 F.3d 1293 (Fed. Cir. 2011), since Flo would not have had the opportunity to further amend the claims or submit new evidence rebutting the presumption against application of 35 U.S.C. § 112, ¶ 6 had the Board upheld the examiner’s claim construction in the first place.

Judge Plager made some additional remarks:

One standard of review is exemplified by the 1997 decision of this court in In re Morris.1 In Morris, the first issue decided was whether, in light of two then-recent en banc decisions by this court, Markman2 and In re Donaldson,3 the Board was free to continue applying its “broadest reasonable interpretation” standard to claim construction issues before it. We held “yes.” Morris continues to be cited to this day by the PTO as authority for the Board to apply that standard to claim construction when an appeal is taken to the Board from an examiner’s rejection of a claim. See, e.g., the Government’s brief in this case at p. 14.

AND

Later in the opinion, however, the court stated a no- deference test regarding review of the Board’s claim construction, comparable to that of district court construc- tions: “Although the PTO gives claims the broadest reasonable interpretation consistent with the written description . . . claim construction by the PTO is a ques- tion of law that we review de novo, . . . just as we review claim construction by a district court.”10 As authority for that proposition Baker Hughes cited the earlier en banc opinion in In re Donaldson; Morris was not cited.
ANDThe consequence of all this is that we now appear to have two contradictory lines of authority on the question of how this court reviews Board claim constructions—a deferential “reasonable” (arbitrary/capricious-type) re- view, and a no-deference “pure” law type review.

AND

The question then becomes whether claim construc- tion by the Board is to be considered a question of “pure” law—the way this court treats claim construction in district court litigation under Cybor Corp.14—and thus to be reviewed without deference; or whether it is something else, a blend of law and fact and judgment—as the Su- preme Court said in Markman,15 a “mongrel practice”—in which case it is at least arguably subject to the “arbitrary and capricious” standard of APA § 706. Interestingly, none of the cases applying the Baker Hughes no-deference standard has paused to explain why that is the preferable standard as a matter of law or policy, or how it relates to the review standard that the Board uses.

AND

However, that creates at least the appearance of an incompatible situation in the review process, since this court presumptively would be applying a more narrow interpretation to the claims than the Board did. To the extent the Board upholds an examiner’s “broadest rea- sonable interpretation” of a claim, even though the Board might itself have thought a different construction was the single “correct” one, there is a potential for the Board to find itself overruled on appeal even though it might have arrived at the same interpretation as the appellate court under a more narrow standard.19 Given that this court’s role in these cases is to review an agency decision on the record before the agency, the question must be asked whether a no-deference standard is consistent with that role, and with the deference that Zurko commands this court give to the PTO.

This incompatibility concern assumes that there is a substantive difference, rather than just a verbal one, between the “broadest reasonable interpretation” and what would be the single “correct” interpretation. Said another way, it assumes that, conceptually at least, the Board’s application of the “broadest reasonable interpre- tation” of the contested claim language can include within it the single “correct” interpretation, but may include other reasonable interpretations as well.

As to policy

Rules of law provide the predictions for future deci- sions, on which citizens can rely in the conduct of their activities. As a court of appeals, it is this court’s function to decide the cases before it, but also to rationalize and clarify the applicable rules of law. When, as here, there exists an unnecessary lack of clarity in our rules, I believe we have an obligation as a court to address the problem and, if possible, correct it.

Judge Newman noted:

In the reexamination appeal now before us, the PTO states in its brief that “During reexamination – as in ex parte prosecution – claims are given their broadest rea- sonable interpretation consistent with the specification . . .” That is correct. However, the PTO then advises: “Thus, this Court reviews the USPTO’s interpretation of dis- puted claim language to determine whether it is ‘reason- able’ in light of the specification.” That is incorrect. It is incorrect to convert a search and examination expedient into a requirement of appellate deference. I again remind
us of the problems the Federal Circuit was designed to remedy:

[T]here are areas of the law in which the appellate courts reach inconsistent decisions on the same issue, or in which—although the rule of law may be fairly clear—courts apply the law unevenly when faced with the facts of individual cases. . . . merger of the Court of Claims and the Court of Customs and Patent Appeals addresses these problems.

S. Rep. 96-304, at 9 (1979). This purpose requires the establishment of uniform law, and its correct application.

Obama in debate: "This nation. Me."

Obama's response: you invested in companies that shipped jobs overseas.

Obama: US exports to China have doubled since I took office. We are sending a clear signal that America is a Pacific power.

Romney: I am a son of Detroit. I would do nothing to hurt the US auto industry. I said these companies need to go through a managed bankruptcy. I have never said I would liquidate the industry. Romney brought up government investing in Tesla, Fiskar, and Solyndra. Private industry is not going to invest in a solar company.

Obama: Governor Romney you keep trying to airbrush history.
A decade in which we saw drift...we are now seeing progress.

Romney: I don't want to go back to the policies of the last four years. 10 trillion in debt to 16 trillion in debt under Obama. It's a tragedy that the last four years have been so hard.

Romney in conclusion: I want to make sure we get this economy going. President's path: continuing declining in take home pay. President's path: twenty million without jobs.

After the debate, CBS talked about the debate style and focused on the "number of ships" argument. Although Romney quoted the Navy as not having enough ships, Obama hammered Romney with the "not enough bayonets" laugh line. Romney had a general theme: attacks on me are not an affirmative policy.

But here’s why it was also a vote loser. For a start, Twitter immediately lit up with examples of how the US Army does still use horses and bayonets (horses were used during the invasion of Afghanistan). More importantly, this was one example of many in which the President insulted, patronised and mocked his opponent rather than put across a constructive argument. His performance was rude and unpresidential. Obama seemed to have a touch of the Bidens, wriggling about in his chair, waving his hands dismissively and always – always – smirking in Romney’s direction. By contrast, Romney sucked up the abuse and retained a rigid poker face all night. He looked like a Commander in Chief; Obama looked like a lawyer. Who would you rather vote for?

Aside from the horses and bayonets moment, this was essentially a debate without incident. Part of the fault was the format. It’s interesting to note that Romney won the first debate while standing up and Obama did better in the second when walking around. But when both men were forced to sit for 90 minutes, the energy was inevitably reduced and neither broke through the fourth wall convincingly. Romney had a slight edge because he didn’t use his hands so much: Obama blew his closing statements by developing ultra-energetic conjurer’s hands (“Look at the hands, not at the cards, look at the hands…”)

Ex parte Althoff: teaching away requires discouragement

Examiner’s rejection is based on the use of known, liquid (i.e., having a melting point below room temperature) mold release agents (taught by Roth) for their intended purpose (as release effective substances) in Harakal’s mold release composition. See KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (“The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.”). Although Appellants argue Harakal only exemplifies the use of solid release agents, Appellants have not persuasively shown that one of ordinary skill in the art would have been discouraged from trying a liquid release agent based on the known use thereof as taught by Roth. See In re Gurley 27 F.3d 551, 553 (Fed. Cir. 1994) (“A reference may be said to teach away when a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant.”); cf. Syntex (U.S.A.) LLC v. Apotex, Inc., 407 F.3d 1371, 1379-80 (Fed. Cir. 2005) (“A statement that a particular combination is not a preferred embodiment does not teach away absent clear discouragement of that combination.”).

AND

Further, Appellants have not directed us to persuasive evidence of unexpected results in the use of a liquid polyester release agent as claimed. See Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1371-72 (Fed. Cir. 2007) (explaining a superior property is not unexpected if it results from routine, verification testing to optimize selection of known ingredients because selection of the best ingredients proves nothing more than routine optimization that would have been obvious to one of ordinary skill in the art).

BPAI rejects examiner's obviousness argument in Steinhauser

None of Lynam, Eck, and Moe discloses determining differences in resistances between nodes of a grid and controlling an amount of power provided to each of the nodes based on such differences, as required in independent claims 1, 8, and 10. Indeed, the Examiner does not address this aspect of the claims or explain how the combined teachings of Lynam and Moe or the combined teachings of Eck and Moe render obvious a heater system or method as claimed including these features. Thus, Appellants are correct that the combination of Moe with either Lynam or Eck as proposed by the Examiner would not lead one of ordinary skill in the art to the claimed invention, and particularly a heater system or method in which the differences in resistance between the nodes are determined to control the amount of power provided to a heating surface. See App. Br. 8-9. We do not sustain the rejection of claims 1-5, 7, 8, 10-12, 14-16, and 19 under 35 U.S.C. § 103(a) as unpatentable over Lynam or Eck in view of Moe.

In the same case, an anticipation rejection was sustained:

For the above reasons, Appellants’ arguments do not identify error in the Examiner’s rejection of claim 9 as anticipated by Kahn. We sustain the rejection.

Seven scientists convicted of failure to predict

Scott Pelley mentioned the case against Italian earthquake scientists, described elsewhere as

In a verdict that sent shock waves through the scientific community, an Italian court convicted seven experts of manslaughter on Monday [Oct. 22] for failing to adequately warn residents of the risk before an earthquake struck central Italy in 2009, killing more than 300 people.

"Technology Patents" case and personal jurisdiction

On November 8, 2007, Technology Patents LLC (“TPL”) sued more than 100 domestic and foreign defendants for infringement of U.S. Patents No. 6,646,542 (“the ’542 patent”) and No. RE39,870 (“the ’870 patent”). The allegations concerning the ’542 patent were subsequently withdrawn, so only the ’870 patent is at issue in this appeal. The defendants can be classified into three groups: (1) the domestic carriers and handset companies, including AT&T, T-Mobile, Sprint, Motorola, and others (collectively, “the domestic carriers”); (2) the software providers, including Microsoft, Yahoo, and Clickatell (collectively, “the software providers”); and (3) the foreign carriers, including T-Mobile operating in various coun- tries, Vodaphone operating in various countries, and many others (collectively, “the foreign carriers”).

The district court dismissed the case against the foreign carriers for lack of personal jurisdiction, and it granted summary judgment of noninfringement in favor of the domestic carriers and the software providers, but on separate grounds. TPL appeals from all three orders. We reject TPL’s request that we reinstate the claims against the domestic carriers and the foreign carriers; as to the claims against the software providers, we affirm the district court’s order in part and vacate that order in part, and we remand to the district court for further proceedings on that aspect of the case.

Of multiple actors:

The district court found that TPL’s contentions with respect to those claims failed because those claims require multiple actors and TPL failed to show that the defendants have direction or control over the end users. In so ruling, the district court relied on this court’s cases involving “joint” or “divided” infringement. See BMC Resources, Inc. v. Paymentech, L.P., 498 F.3d 1373 (Fed. Cir. 2007); Muniauction, Inc. v. Thomson Corp., 532 F.3d 1318 (Fed. Cir. 2008). Although this court has recently revisited the issue of divided infringement in the en banc decision in Akamai Technolo- gies, Inc. v. Limelight Networks, Inc., No. 2009-1372 et al. (Fed. Cir. Aug. 31, 2012), that decision does not affect our analysis because claims 11, 12, 14, 21-24, and 26-28 do not present an issue of joint or divided infringement. That is because, contrary to the district court’s ruling, those claims do not require performance by multiple actors. Representative claim 11 requires action only by the originating user, and TPL’s claim charts for each of the listed claims do not require multiple actors. Fur- thermore, TPL appears to have raised a single-actor theory in an August 4, 2008, opposition to a motion to dismiss. In that pleading, TPL argued that “[t]he sender puts the invention into action or service, and controls the transmission of messages.” TPL cited NTP, Inc. v. Re- search in Motion, Ltd., 418 F.3d 1282, 1313-17 (Fed. Cir. 2005), for support. In that case, we noted that “[t]he ordinary meaning of ‘use’ is to ‘put into action or service.’” Id. at 1317. And in Centillion Data Sys., LLC v. Qwest Communications International, Inc., 631 F.3d 1279, 1284 (Fed. Cir. 2011), we held that “to ‘use’ a system for pur- poses of infringement, a party must put the invention into service, i.e., control the system as a whole and obtain benefit from it.”

Of long arm jurisdiction:

The district court dismissed the claims against the foreign carriers for lack of personal jurisdiction. The court held that it lacked personal jurisdiction over the foreign carriers under Fed. R. Civ. P. 4(k)(1) because Maryland’s long-arm statute does not confer jurisdiction over the foreign carriers. It further held that even if Maryland’s long-arm statute conferred personal jurisdic- tion over the foreign carriers, personal jurisdiction could not be exercised over those defendants consistent with due process because the foreign carriers do not have sufficient “minimum contacts” with the State of Mary- land. The district court also held that it lacked personal jurisdiction over the foreign carriers under Fed. R. Civ. P. 4(k)(2), referred to as the “federal long-arm statute,” Synthes (U.S.A.) v. G.M. Dos Reis Jr. Ind. Com de Equip. Medico, 563 F.3d 1285, 1290 (Fed. Cir. 2009), because the foreign carriers do not have sufficient contacts with the United States as a whole such that the exercise of per- sonal jurisdiction over them would comport with due process.

Note footnote 1:

A federal court generally may not rule on the merits of a case without first determining that it has jurisdiction over the subject matter and the parties. Sinochem Int’l Co. v. Malaysian Int’l Shipping Co., 549 U.S. 422, 430-31 (2007). In a case such as this one, however, where the court plainly has subject matter jurisdiction and has personal jurisdiction over the domestic carriers, and where the merits issues are the same for both the domes- tic and foreign carriers, it is permissible for the court to address the merits of the claims against the foreign carriers before addressing the issue of personal jurisdic- tion as to those defendants. See Chevron Corp. v. Na- ranjo, 667 F.3d 232, 246 n.17 (2d Cir. 2012). We have already ruled in favor of the domestic carriers on the merits, so even if we were to hold that the district court has personal jurisdiction over the foreign carriers, the consequence would be to reinstate the plaintiff’s claims against those defendants only to have them promptly dismissed on the merits.

You can't believe what you see on CBS [?]

A Skyline Chili-sized brain fart exploded in the broadcast booth at Gillette Stadium tonight as CBS flagship announcer Jim Nantz, in the closing moments of New England's overtime win against the Jets, insisted New York were the winners in a "stunner" that was the biggest upset of the day.

Indeed, New England (giving ten points) were the biggest favorites in the NFL today, but they didn't lose—a Mark Sanchez fumble in overtime handed them the slim victory. Nantz witnessed all this, yes as the teams met to shake hands on the field he declared the Jets victors and even placed them atop the AFC East. We're not sure what possessed Nantz's brain tonight, but it was something very unhealthy. [CBS]

While prefacing a question for Mitt Romney about Pakistan during Monday's presidential debate on foreign policy, moderator Bob Schieffer had an unfortunate slip of the tongue, referring to Osama bin Laden as "Obama bin Laden."

"We know that Pakistan has arrested the doctor who helped us catch Obama-uh-bin Laden," Schieffer said, seeming to realize his mistake immediately.

“Every year thousands of academic books are published, and no one can be aware of everything that has been previously published relevant to one’s interests. Also, many ideas, when stated at a high level of generality, will inevitably occur to several people independently, and usually in different forms. The devil is in the details, and in this case it is clear that Deacon has worked out a theory that in no way is derivative of others’ approaches.”

Harvard itself has been dogged by plagiarism problems, including those surrounding Laurence Tribe of the Law School.

And of course there is the Harvard Business Review. At page 68 in the April 2004 issue of HBR, one has in the article that became the basis for Hardball:

Plagiarize with pride.

Softball competitors like to think that their bright ideas are sacred. But hardball players know better. They're willing to steal any good idea they see --as long as it isn't nailed down by a robust patent -- and use it for themselves. Ray Kroc didn't invent McDonald's; he took the idea from brothers Dick and Maurice McDonald when he bought their small chain of burger joints. Home Depot founders Arthur Blank and Bernie Marcus didn't invent the first warehouse-outlet hardware chain; they got the "big box" concept from their earlier employer, Handy Dan Home Improvement.

Sunday, October 21, 2012

"60 Minutes" on October 21, 2012

People leaving Goldman Sachs usually do so quietly. Here, resigning from Goldman Sachs in an op-ed piece in the New York Times.

Steven Spielberg's film "Lincoln." Daniel Day Lewis as Abraham Lincoln. "It's about leadership. It's about telling the truth."

17 states have legalized the medical use of marijuana, which defies federal law. Colorado has the most developed medical marijuana industry in the U.S. Health food store motifs and head shop motifs. This is all private enterprise. Enshrined in Colorado Constitution. Mat Cook was first director of enforcement. Transparent regulatory scheme. Every licensed dispnsary grows primarily its own.

More details of excess, greed and “Miss Silicone” (who was named after her large, fake breasts) can be found in Smith’s to-be-released book where he attempts to expose the alleged “toxic” culture during his 12 year tenure at the firm.

Apple’s Java boycott should serve as a wake-up call

In the wake of Flashback, Apple’s update to Java disabled the browser plug-in for any users who hadn’t recently used it, and set the program to be disabled again after certain periods of disuse. Apple had also already removed Java in its latest versions of Mac OSX. Now it’s going further in its Java purge by actively disabling the plug-in for all users.

AND

And for Oracle, Apple’s Java boycott should serve as a wake-up call: Get serious about maintaining Java’s security, or watch one of its most widespread programs go extinct.

Go to alexa.com and type in the name of your favorite website. There is a bunch of prose on the page — it was not written by a human, it was written by an algorithm.
In a couple of minutes, you will think of hundreds of examples of jobs that are so structured that, in many cases, they would be better accomplished by a computer than by a human. From customer service, to fraud and crime prevention, to monitoring the security of your premises, computers with highly sensitive sensors and good data-to-prose software will almost always do a better job than an organic life form. Plus computers don’t sleep, take breaks, daydream or have mood swings.

Alexa has little to say about IPBiz:

Based on internet averages, ipbiz.blogspot.com is visited more frequently by males who are in the age range 25-34, are graduate school educated and browse this site from work.

Shelly Palmer also noted

Neither campaign is talking much about how it sees the future unfolding. We’re hearing differing views about how 20th Century jobs can be created.

More copying at UNC-Chapel Hill

The cover story on CBS "Sunday Morning" on October 21, 2012 was on plagiarism. Meanwhile at the University of North Carolina, a story about copying by UNC-Chapel Hill football player Erik Highsmith is making the rounds.

Highsmith was enrolled in a communications class for which a blog would account for 30% of the grade. He had two posts in 7 days. One post was copied from work by four 11 year olds. The other was copied from somewhere else.

CBS Sunday Morning on October 21, 2012

Charles Osgood introduced the stories for October 21, 2012. Tell our stories using our own words. Lee Cowan does a cover story on plagiarism. Quintin Rowan as a copyist. A plagiarist's tale. Second, Martha Teichner on "exit strategy," on divorce attorney Raul Felder. People are not going to be vindicated. Mo Rocca on the electoral college. Anthony Mason on Paul Williams. What happened to Paul Williams. Anna Warner on Freud. Steve Hartman. Headlines: George McGovern died in Sioux Falls at age 90; Nancy Cordes reports. McGovern wrote 8 books, including "What it Means to be a Democrate." NYT reports on agreement between US and Iran. Fungal Meningities with 23 deaths. Benedict 16th adds 16 saints. Tim Tebow has trademarked Tebowing. Forecast: 60s in northeast.

Lee Cowan on plagiarism. His step had an unusual silence to it. Quintin Rowan, assassin of secrets, penned under a pseudonym, was a mash-up of many books. A collage. Rowan started writing poetry, published in 1996. He began by replacing his words, initially from SAT books. Then he began stealing sentences. He fooled Paris Review, which published two stories that contained copied text. Shakespeare and Wilde were accused of plagiarism. Harrison and My Sweet Lord. Ray Parker, Jr. vs. Huey Lewis. Ed Wasserman of Washington & Lee University. Fareed Zakaria. Jonah Lehrer and Bob Dylan. Jayson Blair of the New York Times (Pelley on reporter fraud scandal). Cowan interviewed Blair about lifting a quote from AP story. Sometimes Blair invented; sometimes plagiarized. Taking stuff from AP and Washington Post. Slippery slope, once you see you can away with it. David Prestey at UC/Berkeley teaches neuroscience. Chris Carron is CEO of turnitin. A comment by Cowan that turnitin would have caught Blair. Blair is now a life coach. Quintin Rowan was outed by a James Bond fan. Contemplated suicide. Rowan: Honestly, it seems like madness. Cowan: the only thing he authored was his own destruction. [Note Rowan's Never say goodbye . From VillageBooks:
the most flagrant plagiarist in recent literary history, whose debut novel was withdrawn amid a national media hailstorm in late 2011, including front-page stories in the New York Times, the Wall Street Journal, and the Guardian. He set the blog world on fire, and continues to be fiercely debated today. In Never Say Goodbye, Rowan traces his personal path through childhood theft and cheating, to adolescent delinquency and drug addiction, to the solace he finds in writing and music. But when he finally achieves sobriety at the age of twenty, insecurity about an early literary success seriously scrambles his judgment, and he turns to stealing from other authors. ]

Almanac. October 21, 1959. Guggenheim Museum opened in New York City. A spiral ramp. One critic compared it to a washing machine. Wright did not live to see the completed building. Motorcycles as works of art. Picasso. Nanchu Pike's light show. In 2002, James Rosenquist. 1997: Men in Black. Dan Plavin, fluorescent light in 1992. It's fun to be here.

Osgood introduces the story "Electoral Disfunction" done by Mo Rocca. Who are the electors? The electors vote in December, 2012. Rocca does mock vote colored pencils vs. markers. Five tables of kids represented states. "It's about everybody's voted." John Quincy Adams lost the popular vote. Campaigning in swing states, such as Ohio. 62% of Americans want to get rid of the electoral college. Thomas Jefferson called the electoral college the ink blot of the constitution. The national popular vote plan. Since 1787, 11 cases of "faithless electors."

Martha Teichner on Raoul Felder. Divorce attracts publicity. Madonna, Guy Ritchie. Paul McCartney. Robin Givens was Felder's client. Carol Channing. Rudolf Giuliani.
Felder grew up in Brooklyn. In 1934, his older brother caught polio in camp. Raoul described situation as barbaric. Jerome wrote "This Magic Moment," "Save the last dance for me." Raoul L. Felder went into divorce law in 1964. Trouble is my business. "I don't start a catfight." No holds barred when Felder represented Giuliani vs. Donna Hanover. Felder is vilified and vilifies. Book: Schmucks. Victor Cogner. Ethically insensitive. Jackie Mason was interviewed. Felder married to Myrna who is also a divorce lawyer. Felder: you have to develop your own path in life. He charges $600 per hour (and up) and escorts clients in a Bentley. The truth is nobody wins in a divorce case. It's better to settle.

Anna Warner on Lucian Freud, grandson of Sigmund. One of the greatest portrait painters of 20th century. Michael Offing met Freud before Freud's death in 2011. 96% of Freud's work is portraits. Lucian born in Berlin in 1922. In 1933, family fled. First wife: Kitty Garmin. Freud would sit in chair; target would sit in opposing chair. Friend was Francis Bacon. Susan Boyd. David Dawson was Freud's assistant. Duchess of Devonshire. I'm happy to say I've finally grown into my portrait. Freud rarely accepted commissions. Freud's greatest works were nudes. The naked body is more permanent, more factual. He fathered dozens of children. A way for Freud to be in the world without having to go out. Freud died at age 88. There is a show on Freud on the Smithsonian Channel on October 21.
Freud: "I paint people, not because of what they are like, not exactly in spite of what they are like, but how they happen to be."

Anthony Mason on Paul Williams. An old fashioned love song. Rainy days and Mondays. The Carpenters. Evergreen. The Rainbow Connection by the Muppets. I won't last a day without you. Voice of a sad munchin. I was a little media whore. Johnnie Carson loved him, was on 50 times. By end of 1980's, Williams all but disappeared. Kessler's: Paul Williams: Still Alive. Three years ago, Williams elected president of ASCAP. Won Oscar for Evergreen. Williams was born in Omaha. We've only just begun was his first. Then the floodgates opened. Three Dog Night. Helen Reddy. David Bowie. Rainbow Connection is Williams' favorite. Written in KermitSpeak. When you are in high school and you're four foot six. Go from being different being special. Guest hosted Merv Griffin show while he was high. March 15, 1990: sobriety birthday. I have a blackbelt in backslapping. Williams: response has been so respectful.

Rita Braver on fact checkers. FactCheck.org at UPenn. Brooks Jackson, project started in 2003. Women have lost 580,000 jobs, but figure is closer to 90,000. Complaints and pushbacks from both campaigns. PolitiFact and the truthometer. CBS news has fact check operations. NBC's Andrea Mitchell quoted by Obama; NBC objected to ad. MotherJones. ever-roiling political tussel. Korn. Equal opportunity liars. Glenn Kessler. Pinocchio noses. Bain Capital was not a "corporate raider." 2.3 billion of tax credits went overseas. David Korn: temptation to bend the truth is too strong.

Steve Hartman on Destiny. Bob Celano of Mt. Vernon, New York. Bob asked his future wife: when's your birthday. [May 1941] They were born on same day, in same hospital. Finding true love can be a state of mind.

Tuesday, October 16, 2012

Anticipation the epitome of obviousness?

**Hence, we agree with the Examiner that Nagano renders the claimed fuel rod unpatentable. See In re Fracalossi, 681 F.2d 792, 794 (CCPA 1982) (A disclosure that anticipates under 35 U.S.C. § 102 also renders the claim unpatentable under 35 U.S.C. § 103, for anticipation is the epitome of obviousness.)

Applicant loses before BPAI in Ex parte WIGARD

**a claim is given its broadest reasonable construction “in light of the specification as it would be interpreted by one of ordinary skill in the art.” In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004)

**merely repeating claim language and asserting without any further evidence that Kwak does not teach the measuring steps is not considered a separate argument for patentability. See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011).

Applicant fails in Ex parte BANOWSKI

Principles of law:

“In proceedings before the Patent and Trademark Office, the Examiner bears the burden of establishing a prima facie case of obviousness based upon the prior art.” In re Fritch, 972 F.2d 1260, 1265 (Fed. Cir. 1992).
“The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). “If a person of ordinary skill can implement a predictable variation, § 103 likely bars its patentability.” Id. at 417.
Moreover, an “[e]xpress suggestion to substitute one equivalent for another need not be present to render such substitution obvious.” In re Fout, 675 F.2d 297, 301 (CCPA 1982). As noted by the Court in KSR, “[a] person of ordinary skill is also a person of ordinary creativity, not an automaton.” 550 U.S. at 421.

AND

Such a combination is merely a “predictable use of prior art elements according to their established functions.” KSR, 550 U.S. at 417.

As to unexpected results:

If Appellants are suggesting that there is an unexpected result, Appellants have provided no evidence that the results are unexpected relative to the closest prior art of Banowski and Schamper. No comparison with the prior art is presented. See In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991) (“[W]hen unexpected results are used as evidence of nonobviousness, the results must be shown to be unexpected compared with the closest prior art.”).

AND

“[W]here the general conditions of a claims are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456 (CCPA 1955) (citing In re Dreyfus, 73 F.2d 931 (CCPA 1934); In re Waite, 168 F.2d 104 (CCPA 1948)). Appellants have also provided no evidence that the matching yields any unexpected results in the antiperspirant or deodorant products.

Applicant fails with invocation of 37 C.F.R. § 1.104(c)

**Appellants generally argue that the Examiner has “failed to meet the
express requirements of 37 C.F.R. § 1.104(c),” which states: “When a reference is complex or shows or describes inventions other than that claimed by the applicant, the particular part relied on must be designated as nearly as practicable. The pertinence of each reference, if not apparent, must be clearly explained and each rejected claim specified.” (App. Br. 6.) Specifically, Appellants argue that the “Examiner has made no attempt at locating the following” claim feature: compiling textual information for citations which are cross-referenced in a database for selected genes (id. at 8-9). We are not persuaded.

BPAI overturns rejections in Ex parte SCHNEIDER

As to anticipation, the BPAI cited Net MoneyIn v. VeriSign, 545 F.3d 1359: “[U]nless a prior art reference discloses within the four corners of the document not only all of the limitations claimed but also all of the limitations arranged or combined in the same way as recited in the claim, it cannot be said to prove prior invention of the thing claimed and, thus, cannot anticipate under 35 U.S.C. § 102. ”

The BPAI also noted: However, a claim element cannot be interpreted so broadly so as to read the limitation out of the claim. See Texas Instr. Inc. v. United States Int’l Trade Comm’n, 988 F.2d 1165, 1171 (Fed. Cir. 1993) (Claim language cannot be mere surplusage. An express limitation cannot be read out of the claim).

KSR and obvious design choice

The good news for applicant in Ex parte Kobayashi was that applicant won on anticipation and obviousness rejections. The bad news was a new rejection, courtesy of KSR (via US v. Adams) and obvious design choice, termed here art-recognized alternative design structures. There was no evidence of unpredictability of the new combination.

The BPAI reminded applicant that the BPAI passes only on rejections, and does not decree patent issuance, citing to a variety of cases including Voss, Borkowski, Arkley, and In re Fisher, 448 F.2d 1406 (CCPA 1971).

Checking up on Intellectual Ventures [IV]

IP Checkups Inc., a Berkeley, Calif.-based firm that helps small companies navigate the patent landscape, now hopes to shine a light on one of the world's biggest NPEs: Intellectual Ventures. IP Checkups announced on Monday that it intends to compile a free public database of IV's roughly 40,000 patents, which are spread between an estimated 1,200 subsidiaries. The firm says it will give updates on its research on a blog written in the style of a "detective film noir." To complete the project, IP Checkups is asking for $80,000 in donations through the crowdfunding web site Indiegogo.

Nano nano

Americans will soon get the chance to buy what is generally considered the world’s most inexpensive automobile. But considering the safety problems experienced by the little Tata Nano – which has received only a mixed reception in its home Indian market – it’s anyone’s guess whether U.S. motorists will say yes or no-no to the microcar.

The Nano is the work of Tata, one of India’s biggest industrial conglomerates and parent to a carmaking division with aggressive global aspirations. Along with the homegrown Tata brand it also owns both the British Jaguar and Land Rover marques.

Invalidity of claims of US 6,164,533 upheld by CAFC

In In re Barton Patent 533, the CAFC affirmed the BPAI in re-examination 90/010,064 . This related to an ex parte re-exam request filed on US 6,164,533 . The relevant prior art was US 6,112,191. Apart from the prior art, the examiner rejected over lack of written description.

In the context of the written description rejection, the BPAI cited In re Barker, 559 F.2d 588, 593 (CCPA 1977). The BPAI further noted that limiting a generic claim to a species not disclosed in the specification does not comply with the written description requirement of 35 USC 112 P1, citing Ex parte Ohshiro, 14 USPQ2d 1750 (BPAI 1989). The BPAI illustrated by pointing out that disclosing a car does not provide support for a red car. In the decision, the BPAI found that all 24 claims failed to comply with the written description requirement of 35 USC 112.

Moreover, the specification gives no reason to construe the claims to require that an external computer calculate the values programmed into the filter. See Innova/Pure Water, Inc. v. Safari Water Filtration Sys., 381 F.3d 1111, 1117 (Fed. Cir. 2004) (“[E]ven where a patent describes only a single embodiment, claims will not be read restrictively unless the patentee has demonstrated a clear intention to limit the claim scope using words or expressions of manifest exclusion or restriction.”) (internal quotations omitted). The embodiment described in the specification, which utilized an external computer connected to the hearing aid to calculate coefficients for the programmable filter, reflects the size and complexity of computers at the time of the patent application in 1986.

Written description under 35 USC 112 arose:

To satisfy the written description requirement, the specification must “reasonably convey[ ] to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date.” Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc). (...)

Thus, this record contained substantial evidence from which the jury could conclude that the ’850 Patent conveys to one skilled in the art that the inventors were in possession of a programmable hearing aid that could use adaptive filtering for feedback cancellation at the time of filing. This court therefore affirms the district court’s denial of JMOL that the ’850 Patent is invalid for lack of written description.

Anticipation arose:

Because it was filed October 17, 1985, Graupe is prior art to the ETG Patents under 35 U.S.C. § 102(e). (...)
Indeed, an accused infringer enjoys a presumption that allegedly anticipating material in a prior art patent is enabled. Impax Labs., Inc. v. Aventis Pharms., Inc., 468 F.3d 1366, 1382 (Fed. Cir. 2006). Even if “cancelling . . . acoustic feedback” was enabled, however, the record does not show that “cancellation” or “reduction” of feed- back, as disclosed by Graupe, is the same as the “substan- tial reduction” claimed in the ’850 Patent. The comparison of cancellation with substantial reduction was a fact question for the jury, which made the implicit finding that Graupe does not disclose “substantial reduc- tion” of acoustic feedback.

Festo arose:

ETG has not overcome the presumption that the nar- rowing amendment was made to secure the patent. Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 739 (2002). The prosecution history in this case shows that the claim limitation at issue was added in response to a rejection of closely related claims, and provides no other explanation for the limitation. Honeywell Int’l v. Hamilton Sundstrand Corp., 523 F.3d 1304, 1315–16 (Fed. Cir. 2008) (“If the prosecution history reveals no reason for the narrowing amendment, the presumption is not rebutted. . . . Silence does not overcome the presumption.”) (internal citation omitted). This court requires a strong showing – not present on this record – to satisfy the “very narrow” exception to prosecution history estoppel for amendments only tangentially
related to the equivalent in question. Cross Med. Prods.
v. Medtronic, Inc., 480 F.3d 1335, 1342 (Fed. Cir. 2007).
ETG’s argument that it did not relinquish equivalents that involve “determining”—rather than “measuring”— phase and amplitude, also fails. Prosecution history estoppel bars application of the doctrine of equivalents even where the applicant surrendered more claim scope than was necessary to overcome a rejection. See Norian Corp. v. Stryker Corp., 432 F.3d 1356, 1361–62 (Fed. Cir. 2005) (holding patentees are restricted by prosecution history estoppel to “the scope of what they ultimately claim”).

Of damages:

Even if Defendants had not waived this argument, this court cannot “correct” a damages figure by extrapolating a royalty rate from the jury’s lump sum damages award and multiplying that royalty rate by a revised sales base. “Except in those cases in which it is apparent as a matter of law that certain identifiable sums included in the verdict should not have been there, the court may not arbitrarily reduce the amount of damages, for to do so would deprive the parties of their constitutional right to a jury.” 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2815 (2d ed. Supp. 2012). An “identifiable sum” typically must be separately listed on the jury verdict form. Garrett v. Faust, 183 F.2d 625 (3d Cir. 1950) (verdict form sepa- rately listed damages resulting from misrepresentation, and district court appropriately deducted that amount from final award because there was insufficient evidence of misrepresentation); Cornell University v. Hewlett- Packard Co., 609 F. Supp. 2d 279 (N.D.N.Y. 2009) (Rader, J. by designation) (reducing damages by multiplying “jury’s uncontroverted royalty rate of 0.8 percent” by legally correct royalty base).

Here, the verdict form only required the jury to award a lump sum damages figure for each Defendant.

On doctrine of equivalents:

This case is closely analogous to Hughes Aircraft Co. v. United States, 140 F.3d 1470 (Fed. Cir. 1998), in which this court found infringement under the doctrine of equivalents where advances in computer technology occurring after the patents issued allowed changes in the nature and location of claimed calculations. Hughes involved an apparatus to control the orientation of satel- lites using commands from a ground control station. (...)

Defendants argue that their devices cannot be found to infringe under the doctrine of equivalents because, if the claims are “expanded” to cover the adaptive filters in the accused devices, then the claims would also extend to the prior art Graupe patent. See Wilson Sporting Goods Co. v. David Geoffrey & Assoc., 904 F.2d 677, 684 (Fed. Cir. 1990) (overruled in part on other grounds by Cardinal Chem. Co. v. Morton Int’l, 508 U.S. 83 (1993)) (“[A] pat- entee should not be able to obtain, under the doctrine of equivalents, coverage which he could not lawfully have obtained from the PTO by literal claims.”). An accused infringer seeking to avoid infringement under the doc- trine of equivalents on this basis bears the burden of “presenting prior art which shows that the asserted range of equivalence would encompass the prior art,” but the patentee bears the ultimate burden of persuasion to show that its claims do not cover the prior art. Streamfeeder, LLC v. Sure-Feed Sys., Inc., 175 F.3d 974, 984 (Fed. Cir. 1999).

Of evidence:

This court applies regional circuit law to evidentiary issues. The Third Circuit requires a party challenging the district court’s evidentiary ruling to demonstrate that the district court acted irrationally and arbitrarily. In re Paoli R.R. Yard PCB Litig., 113 F.3d 444, 453 (3d Cir. 1997).

The "25% rule" arose:

Defendants seek a new trial on damages because ETG’s expert, Mr. Musika, used the 25 percent rule of thumb in his analysis of a reasonable royalty rate. This court has held that “the 25 percent rule of thumb is a fundamentally flawed tool for determining a baseline royalty rate in a hypothetical negotiation. Evidence relying on the 25 percent rule of thumb is thus inadmissible under Daubert and the Federal Rules of Evidence, because it fails to tie a reasonable royalty base to the facts of the case at issue.” Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292, 1315 (Fed. Cir. 2011). This court does not depart from the counsel and holding of Uniloc.

In this case, however, Mr. Musika’s references to the 25 percent “rule” (which is no longer a “rule”) did not irretrievably damage the reasonableness of his method and result in arriving at recommended royalty rates. For instance, Mr. Musika relied more prominently on other factors, such as separately determining that the infring- ing products garner a 9.2% premium on operating profits over non-infringing devices.

She [Annette Schavan ] asked her alma mata, the University of Duesseldorf, to examine the accusations. A report conducted by the university's philosophy faculty found indications of a "plagiaristic approach" on 60 of the 351 pages, Der Spiegel reported.

IPBiz notes that although the copying charges are likely politically motivated, the lack of substance of the underlying thesis work is scary. The thesis of SIU's Poshard was based on analysis of questionnaire responses. Here, Schavan's thesis was "People and Conscience - Studies for conditions, needs and requirements for forming a conscience nowadays"

Reuters notes Schavan among the first to condemn then-Defense Minister Karl-Theodor zu Guttenberg for plagiarizing his PhD thesis, calling it "shameful".

Now that the shoe is somewhat on the other foot, what next?

Of course, perhaps there are more significant things to discuss than copying charges in fluffy Ph.D. works.

When Gertrude Stein wanted to visit her childhood home in Oakland, she could not find the house, and wrote :

What was the use of me having come from Oakland, it was not natural for me to have come from there yes write about it if I like or anything if I like but not there, there is no there there.

Jonathan Nyce, the Hopewell Township research scientist convicted of fatally beating his wife then staging her death as a car accident in 2004, has been released from prison and says he's written a book that will prove his innocence.

After five years behind bars, the 60-year-old father of three walked out of prison on Dec. 5 and has returned to his parents' home in Collegeville, Pa., where he was reunited with his children.

From an overview of the book:

Begining in January of 2004, Dr. Jonathan Nyce, a respected medical research scientist with a worldwide reputation in new drug discovery, a former medical school professor, and the father of three young children, was accused, tried and wrongfully convicted of the murder of his wife, Michelle. This happened despite clear evidence that another man who had been stalking Michelle, a man against whom the Nyces had obtained a restraining order, had murdered her. Previously hidden police reports show that (1) the stalker was found to be in violation of the restraining order and to have Michelle's blood on him in the time frame of her death; (2) police reports cite "black hair clenched in victim's left hand" (the stalker's hair is black; Dr. Nyce's hair is blond); and (3) size 9 1/2 footprints were found leading away from Michelle's body (the stalker wears size 9 1/2; Dr. Nyce, size 12/13). While keeping these facts concealed from the jury, police and prosecutors invented a case against Dr. Nyce and obtained his conviction.

It [missile in Cuba] had the very difficulty, it had to back up and this source was describing both this long telephone-like missile,... canvas-covered object, he didn't call it a missile, but it couldn't get around the corner. If this had been a surface to air missile, they would have had no trouble, so this report and others like that were the basis on which, when the U-2 started flying, these five reports were used to target the U-2 where to go to look and that was the mission on the fifteenth of October, which actually discovered offensive missiles. So my role was looking at all of these reports, trying to find out if there was any evidence of offensive missiles in Cuba and then to explain the import and then to participate in the preparation of the estimate, which we did, which we did not believe the Soviets would deploy offensive missiles in Cuba to which McCone differed with us and McCone turned out to be right.

...the president [Kennedy] recognized that, for Chairman Khrushchev to withdraw the missiles from Cuba, it would be undoubtedly helpful to him if he could say at the same time to his colleagues on the Presidium, "And we have been assured that the missiles will be coming out of Turkey." And so, after the ExComm meeting [on the evening of 27 October 1962], as I'm sure almost all of you know, a small group met in President Kennedy's office, and he instructed Robert Kennedy—at the suggestion of Secretary of State [Dean] Rusk—to deliver the letter to Ambassador Dobrynin for referral to Chairman Khrushchev, but to add orally what was not in the letter: that the missiles would come out of Turkey.

Ambassador Dobrynin felt that Robert Kennedy's book did not adequately express that the "deal" on the Turkish missiles was part of the resolution of the crisis. And here I have a confession to make to my colleagues on the American side, as well as to others who are present. I was the editor of Robert Kennedy's book. It was, in fact, a diary of those thirteen days. And his diary was very explicit that this was part of the deal; but at that time it was still a secret even on the American side, except for the six of us who had been present at that meeting. So I took it upon myself to edit that out of his diaries, and that is why the Ambassador is somewhat justified in saying that the diaries are not as explicit as his conversation.

[Sorensen comments, in Bruce J. Allyn, James G. Blight, and David A. Welch, eds., Back to the Brink: Proceedings of the Moscow Conference on the Cuban Missile Crisis, January 27-28, 1989 (Lanham, MD: University Press of America, 1992), pp. 92-93]

David Martin looks back in the 13 days in October 1962. U-2 flight over Cuba on Oct. 14, 1962. An exhibit at the National Archives in Washington. Speech on October 22, 1962, full retaliatory response on the Soviet Union. On Oct. 23, six Navy jets in Operation Blue Moon took off for Cuba from Key West. A gotcha moment. Adlai Stevenson on October 25 presented the pictures at the United Nations. Another flight on October 25. Short range FROG missiles. Meanwhile, 120,000 troops gathering in Florida. An invasion might be met by nuclear missiles. Crisis reached its peak on Saturday, October 27, 1962. A U-2 was shot down. Where were the warheads. Michael Dobbs reviewed the photos and found the nuclear storage bunker, a few miles south of Havana. Missiles were ready to fire in 2.5 hours. Coffee took the photographs that prevented World War III. "The Boys of October." The Martin story made it appear that the missiles were removed in return for a pledge that the US would not invade Cuba. The Martin story did not mention the removal of US missiles from Turkey.

On October 14, 1926 (86 years ago), A. A. Milne's Winnie the Pooh published in England. Winnipeg the Bear at London Zoo. Piglet. Milne wrote only two Pooh books. 1969 Academy Award. The original bear is on display in New York public library.

Richard Schlesinger on Roosevelt Island in NYC. Four Freedoms speech. Granite and grass homage. Lewis Cahn, Nathaniel Cahn's father. "The Room" focuses on words from January 6, 1941. Freedom of speech and expression was the first freedom. The project started in 1973, pushed by Nelson Rockefeller. 1501 Walnut Street. $50 million dollars was raised.

Martha Teichner on Patricia Cornwell. High tech crime solving skills. Next book is out on Tuesday. Use imagination as a coping skill. Neighbor in NC was Billy Graham.
Her office is in Boston. I work as long as my characters talk to me. Post-Mortem was published in 1990. The CSI phenomenon. Forensic thriller. The story is about what Kay Scarpetta is going through. Stacey Gruber is partner, a genius scientist. Making a pizza. Maryland's Forensic Medical Center in Baltimore. Giant whole body CT scanner for autopsies. Maryland's center re-creates crime scenes.

Barry Peterson's postcard from Beijing. Application of creams to lighten the skin.
Foods with skin lightening sbilities. Chinese language version of CosmoBride. Whitening products are a $2 billion per year business in China. Movie "Banquet," talks about China in 700 BC. In China, the anti-sun mask at beaches. Evercare Fortune Hospital does skin lightening. Interviewee's ideal, color of the eggwhite of a boiled egg.

LA County Traffic Cop Elton Simmons profiled by Steve Hartman. Captain Pat Maxwell reviewed Simmons' record and found no complaints. Pitch perfect mix of authority and diplomacy. Disarming. Melt away a polar icecap of preconceptions. There is a way to give tickets.

Sharon Osbourne of "The Talk" talks to Lee Cowan. America's Got Talent. Charm School. She turned 60 last week. First family of reality tv. Ten years ago The Osbournes on MTV. Candid and funny look at Sharon and Ozzie. Sharon diagnosed with colon cancer during the MTV show. Sharon Rachel Levy born in 1952. Father was a music manager, the Al Capone of "pop." By age 15, she had quit school and was working for her dad. When you love someone, you have to work it out. Sharon's hobby is decorating. Sharon has 14 dogs. Quiet isn't in the Osbourne repetoire.

Osgood talks about Arthur Godfrey, then introduces Seth Doane story on Jake, 35 year old ukulele virtuoso. Video on youtube in 2005, ukulele version of John Lennon while my guitar weeps. Tiny Tim clip. Marketed as instrument "anyone can play." Originally from island of Madeira. Machete made from koa wood. Kamaka Company makes from koa. Feel the vibrations in wood. Priced from $800 to 5000. Two words mean "flea jumping." Slowest rendition of "tiny bubbles." Perfect soundtrack to paradise.

Less excited by papers from non-US scientists?

“More mysterious, given his standing in the field, is why two of Yamanaka's papers were among the 10 with the longest lags. In the most delayed of all, Yamanaka reported that the tumour-suppressing gene p53 inhibits the formation of iPS cells. The paper took 295 days to be accepted. It was eventually published by Nature in August 2009 alongside four similar studies. 'Yamanaka's paper was submitted months before any of the others,' complains Austin Smith at the University of Cambridge, UK, who coordinated the letter sent to leading journals.

“Yamanaka suggests that editors may be less excited by papers from non-US scientists, but may change their minds when they receive similar work from leading labs in the US. In this case, Hochedlinger submitted a paper similar to Yamanaka's, but nearly six months after him. Ritu Dhand, Nature's chief biology editor, says that each paper is assessed on its own merits. Hochedlinger says he was unaware of Yamanaka's research on p53 before publication.”

A comment was made to californiastemsellreport including reference to the previous IPBiz post: http://ipbiz.blogspot.com/2009/01/yamanaka-scooped-on-ips-stem-cell.html
[To date, californiastemcellreport declined to publish the comment.]

Samsung prevails against Apple at CAFC

The CAFC reversed Judge Koh of ND Cal:

Samsung Electronics Company, Ltd., Samsung Elec- tronics America, Inc., and Samsung Telecommunications America, LLC (collectively, “Samsung”) appeal from the district court’s order granting Apple, Inc., a preliminary injunction and enjoining Samsung from selling its Galaxy Nexus smartphone. Because the district court abused its discretion in entering an injunction, we reverse and remand.

Of course, eBay is cited:

“A plaintiff seeking a preliminary injunction must es- tablish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citation omitted). These traditional four factors “apply with equal force to disputes arising under the Patent Act.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). The parties dispute the district court’s decision to grant injunctive relief based on its analysis of the likelihood of success and irreparable harm factors. To the extent we deem necessary, we address these argu- ments below.

Of irreparable harm:

Here, Samsung challenges the district court’s decision on both grounds: it argues that it was abuse of discretion for the district court to find that Apple will be irreparably harmed in the absence of an injunction, and that Apple sufficiently established a causal nexus between the harm alleged and the infringing conduct. We hold that the district court abused its discretion in determining that Apple established a sufficient causal nexus.

AND

The patentee must rather show that the infringing feature drives consumer demand for the accused product. Id. Only viewed through the prism of the causal nexus analy- sis will the irreparable harm allegations reflect a realistic sense of what the patentee has at stake.

Here, Apple’s evidence of causal nexus is limited.

AND

To begin with, the district court correctly observed that our case law does not present much guid- ance on how the causal nexus test should be applied. Quite appropriately, before analyzing the evidence, the district court first articulated the legal framework that it deemed applicable. It stated that “the requisite causal nexus . . . can be established by showing either that the patented feature is an affirmative driver of consumer demand, or that [its] absence would suppress consumer demand.” Apple, Inc. v. Samsung Electronics Co., __ F. Supp. 2d __, 2012 WL 2572037, *57 (N.D. Cal. 2012).

The CAFC mentions an article in a blog:

The third and last document is an article published in a blog that contains “news and notes from the Google Mobile team.” J.A. 1621. The article simply explains and praises Android’s QSB feature but says nothing about consumer demand.

In "likelhood of success," the meaning of the word "each" was discussed:

We hold that the district court’s determination that “each” modifies “plurality of heuristic modules” is errone- ous because it contravenes the plain terms of the claim. The word “each” appears not before “plurality of mod- ules,” but inside the “wherein” clause and before the phrase “heuristic modules.” The district court drew support for its construction from ResQNet. Apple, __ F. Supp. 2d at __, 2012 WL 2572037, at *8. But ResQNet in fact counsels the opposite conclusion. That case in- volved two different claims, one of which recited “each field,” the other one “each of a plurality of fields.” ResQNet, 346 F.3d at 1377. We thought “[t]his difference is significant” and thus construed the two claims sepa- rately, holding that the first claim meant “all fields,” the latter “at least two, but not all.” Id. at 1382. Here, the district court eliminated the very distinction that we deemed material in ResQNet by plucking “each” from where it appears and planting it before the phrase “plu- rality of modules.” That was error, and Apple’s reliance on ResQNet based on the assertion that it “involv[ed] almost identical claim language” is—at best—incorrect. Appellee’s Br. 46.

Thursday, October 11, 2012

"She stole data and lied in a publication."

Jackie Burns is the director of two major UF research facilities - the Citrus Research and Education Center in Lake Alfred and the Southwest Florida Research and Education Center in Immokalee - and oversees all citrus-related research for the university. Both facilities are part of the Institute of Food and Agricultural Sciences (IFAS), one of UF's largest academic subsidiaries.

"In a publication, she reported data from our lab as her own data without our knowledge, and additionally she stated she and her (co-author) did experiments that they did not do," William Dawson, a plant pathologist at the Lake Alfred center, wrote in an August email to UF's chief auditor, Brian Mikell. "She stole data and lied in a publication."

The topic of intellectual property arose:

Dawson said Wednesday that no top UF official has ever spoken with him concerning his intellectual-property theft allegations against Burns.

Dawson said he didn't accept Burns' explanation that she didn't intend to steal his data, and he maintained the problem went beyond her using his plants.

Part of the issue:

At the time, Burns needed Dawson's help because the U.S. Department of Agriculture had classified greening as a "select agent." That meant licenses and special facilities were required to handle infected material. The USDA had licensed Dawson, but not Burns, to handle select agents.

About Me

I'm a patent lawyer located in central New Jersey. I have a J.D. from the University of Chicago and a Ph.D. from Stanford University, where I studied graphite intercalation compounds at the Center for Materials Research. I worked at Exxon Corporate Research in areas ranging from engine deposits through coal and petroleum to fullerenes. An article that I wrote in The Trademark Reporter, 1994, 84, 379-407 on color trademarks was cited by Supreme Court in Qualitex v. Jacobson, 514 US 159 (1995) and the methodology was adopted
in the Capri case in N.D. Ill. An article that I wrote on DNA profiling was cited by the Colorado Supreme Court (Shreck case) and a Florida appellate court (Brim case). I was interviewed by NHK-TV about the Jan-Hendrik Schon affair. I am developing ipABC, an entity that combines rigorous IP analytics with study of business models, to optimize utilization of intellectual property. I can be reached at C8AsF5 at yahoo.com.